Part 2, The dangerous disease of power
I have long held to the proposition that the expressed motivation attracting judges to the bench is suspect.
I do not take as universally true the easy, self-serving assurance of many judges that he or she simply wants to do good. I am leery of do-gooders. I have believed, and I still do, that judges, like all persons, have needs that fuel their choices. Their need, in a money society, is certainly not money, for judges are notoriously underpaid. The greatest attraction to the bench is simply power. In a given case the judge has more power over the litigants before him than any other human being on the face of the earth.
I have sometimes encountered tyrant judges who lord it over the poor rabble struggling below them, who seem to enjoy observing a particular lawyer helplessly twisting and turning in the winds of their whims. I have suspected that some such judges furtively rejoice in their power over lawyers who have been more successful than they, and over litigants who for unobvious reasons the judges may despise. I have seen judges who eagerly await the opportunity to dump a load of scorn on those who have made unfortunate choices in their lives. Yes, some want to do harm. And I am saddened that I find myself writing these lines.
I recognize that judges, like doctors who daily face the injured and dying, and lawyers who are routinely relating to clients who are maimed or hated or who are guilty of horrendous crimes, may become calloused in order to maintain some semblance of mental health. But as for judges, how does a human being wrench screaming children from their parents, turn one’s back on the pathetically injured for no better reason than they fail to fit some fictional legal model, send men to the death house or to long terms in the torture chambers of prison unless the judge has grown a certain protective coating around the hide of the heart? Still even the most gentle judge, the rare one who exudes a caring nature, is often one who I am not likely to trust, not at first. I have discovered that too often an outward benevolence covers a merciless heart.
But if I am fair I must acknowledge that judges are not too different than I. I, too, claim I want to do good. I claim that I have devoted my life to help the forgotten, the lost, the voiceless, and the damned. It all sounds good. The idea of it feeds my soul. I have a need to be useful, to feel worthy, to engage in just causes, to fight just fights. I wish to be seen as a warrior for the people. If my own sense of self stands for justice on behalf of ordinary people, justice against the powerful, against the corporate overlord and the tyranny of government why can’t I grant such an honorable motive to judges? After all, we have encountered many humans who genuinely care. And judges who were once lawyers surely know the dismal plight of those who seek justice and who so rarely obtain it. Yes, rarely.
Still, these days too many judges ascend to the bench bearing a fealty pledged to the people’s masters. We can understand the phenomenon. Today, most judges are selected by a power saturated with the interests of business, and a majority of the judges appointed were once prosecutors or corporate lawyers. In their former lives these lawyers took on the cause of power. As prosecutors they were daily drowned in the dreary decadence of criminals crowding the jails. As civil defense lawyers they experienced the excesses of trial lawyers representing those who claimed to be injured or who, even though injured, sought to take advantage of their injuries. The politicians seek judges who reflect their own philosophical leanings. The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.
“The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.”
Unfortunately, my view of the bench is supported by a majority of trial lawyers who represent ordinary people. At the Trial Lawyers College, where we teach lawyers how to successful fight for people against corporate and government power, the attitude of the attendees who have spent many years in the trenches before countless judges is nearly uniform. Rarely do I find a lawyer who believes most judges are mostly fair, mostly caring, and mostly driven to accomplish good ends. Sadly, many see judges as their enemies, as opponents in the courtroom even more powerful and adverse to the lawyer than the opposing lawyer.
They see judges more concerned with their dockets, with moving their cases forward, with controlling the courtroom and the lawyers, with making decisions that will be acceptable to their constituents and that will not be badly reported by the media. True, most often lawyers do not see judges as overtly dishonest or even consciously in the pocket of power. But they see them as the possessors of power who too often exercise it wrongly, insensitively, in forwarding their own agendas, and ultimately functioning to the detriment of the litigants. This is not to say that there are no caring, fair, even loving judges in this country. Many, but not enough, do great honor to the bench. In the end, a majority of judges are seen by most people’s lawyers as a power source of harm.
As for me it is harmful to look up to a judge who has ignored the poor and bowed to the rich, to show such a judge respect when he is not worthy of respect, to show such a judge deference when he reveals an underlying indifference to the human condition, to give such a judge honor when he has lived a life on the other side protecting power and money. Yet I am troubled by these judgments.
Gerry Spence's Blog 
I have wrestled for the last few years with the notion of becoming a judge. This always comes up after I’ve observed what I believe is an incompetent one–I believe I am brighter and harder-working and that I try to do the right thing. And yet I am concerned that I am, by nature, too much of an advocate to do it right. So the same thing that motivates me discourages me.
I am still a somewhat new judge, appointed by the Governor just three years ago and then elected the next year without opposition. I was formerly a plaintiff’s attorney and public defender. I have every one of your books on my shelf in my office proudly displayed and recommend to all attorneys to read them and to get their hands on your video tapes of how to conduct a trial. I even was accepted for your Judicial College but it was canceled unfortunately. I offer that as a basis for where I come from.
I was warned by a mutual friend, Judge Davis, to be involved in the State Judges Organization because the isolation for a Judge is incredible, and it has turned out to be true. I’ve found the Judges I deal with at the meetings to have the same goals that you call for. Due Process for the accused and the goal of achieving Justice.
We have to deal with litigators who are unprepared and untrained on both sides of cases. We have to enforce legislation which we may not agree with but which has been upheld by our Court of Appeals and our Supreme Court. It is also true that we have to answer to the public at election time. These are not meant to be excuses but rather explanations for why I may sometimes be short.
I take time every month to read an article written by the Hon. Bernard Boland from Minnesota containing ten pieces of advice for new Judges. They have proven to be extremely valuable.
One is to realize the case is not about you, it is not an opportunity to show you are tough on crime or the champion of the underdog. Another is to not compete with the lawyers, “There’s no need to demonstrate that you’re smarter, or that you can try the case better. You aren’t and you can’t, and you’re likely to make a fool of yourself if you try”. That one took a few examples before it took.
Yet another is to remember that as Judge you have the easiest job in the Courtroom and the Attorneys have the hardest.
I wont quote all of them but they all are quotable and have helped in keeping me grounded. I would encourage all to find a copy and read them. http://mnbar.org/benchandbar/2002/oct02/essay.htm
Paul:
Judge Paul, I laud your response. If most judges viewed their job as you do I would have experienced a different life in the courtroom. Thank you.
Gerry
Beth: You say you feel you are too much of an advocate? I have never encountered a real judge who didn’t exercise his or her power toward “a just result.” We all know what justice is. The problem is that what is justice to me may be injustice to you.
The definition of justice always begins with who we are.
For some reason I seem able to get along with most judges. Not all judges, but certainly most.
In any event, I do not think that most judges are lawyers in a search for power, although I am certainly willing to concede that this sometimes occurs. My experience is that the unwarranted exertion of power is a defense mechanism employed by an insecure judge, and more often than not a new one. The older ones, well we get along fine. But I’m almost 59, getting up there too.
I am probably naïve, but my experience has been that most judges want to do the right thing. And they will do the right thing if the lawyer is prepared and can lead the way.
Also, from my perspective, the greatest problem that judges face is the sheer volume of litigation on their dockets. I practice in a big city. Indeed, one worries that the administration of justice might take a back seat to simply finding a way to conclude the case. Out of sheer desperation derived from crowded courtrooms, judges often resort to cookie-cutter “fill in the blank” orders. Plaintiffs’ lawyers also fear that a marginal defense motion for summary judgment might be granted simply to get the case off of the call.
But when all is said and done, my impression is that most judges learn quickly which lawyers are prepared and which ones are not. I believe that if one earns and maintains a positive reputation as a lawyer, he or she is likely to fare better in front of the judge.
My practice is concentrated in representing personal injury plaintiffs. However I began my legal career on the opposite side, working for the insurance industry. I didn’t like some of the things that I saw there, which prompted the switch. Similarly, I think that some judges who emerge from insurance defense firms might feel the same way that I do. In other words, a background in insurance defense does not necessarily earmark the judge as being defense prone. Like me, some of them did not like what they saw there.
As far as judges not being motivated by the money, I agree that most judges are underpaid. However I have seen lawyers with less than thriving practices seek judgeships based upon the salary and the retirement benefits.
Finally, for me the best juror is the one that doesn’t want to be on the jury. It’s a shame we can’t have the same thing with judges. I would probably be a good judge because I don’t want to be one. I don’t want to judge anybody. The way I see it, we all have skeletons in our closets.
Jules, I agree. Many solid, intelligent judges and lawyers work together in the courtroom in a professional way. But I have been writing about tyrant judges who often engender fear in a way that they, not the facts or the law, become the critical obstacle the lawyer faces at trial. The question I address is why the tyrant judge and how to survive him or her.
But I am also writing about the insecure lawyer whose hostile conduct threatens an already insecure judge.
Your satisfactory relationship with most judges tells us more about you as a sound person than about the state of the judiciary as a whole.
I agree: Those who would make the best judges are those who do not want to be judges. The ancient Chinese refused to entrust power into the hands of those who sought it. I have argued that we should draft our public servants, judges included. I discuss these ideas more fully in my book, Give Me Liberty. Thanks, Jules, for you good comments.
I have seen alot of injustice occur due to the busy docket. How do we motivate actors in an overwhelmed system to resist the shame they feel in lower volume? The courts in my state have an entire system in place now with the expressed intention of increasing case clearance numbers – with no mention as to the attendant culture of expedience that that inculcates. There is a poverty of inspiration regarding justice in all of these hallways – and how you maintain that among judiciary / government workers is a big question. I think there should be a daily affirmation website government workers visit daily to be reminded about the solemn role they play in preserving justice in people’s lives. The Japanese have been inspired for generations as to the esteem of such government jobs. What can we do to increase this?
Dear Gerry: The links in this article and in the Judge’s comment are very helpful. Thank you.
I practice in a State where judicial corruption is rampant. Corruption is a horse of a different color entirely. In addition to corruption, we have one judge on our high court who brags that in 16 years he has never once voted to reverse a criminal conviction. We have 5 judges on that nine court bench who never vote for a plaintiff in a civil case and it is a record they esteem themselves highly for. We went for 3 years with not one single victory in that court for a plaintiff. Over the past 4 years, that high court has upheld 100 per cent. Over that same 4 years, plaintiff verdicts have been reversed 88 per cent.
Our judiciary has run so amuck that at least two lawyers I know have been thrown in jail and suspended. Those same lawyers were reinstated after the facts of the judge’s misbehavior came to light on proceedings on the lawyers’ petitions for reinstatement. Meanwhile one of the lawyers was thrust into bankruptcy and the other went to work selling mobile homes so that he could provide for his family in the meantime.
It’s a world of hurt and a constant heartache.
Confounded,
I hurt reading your comment. A kid high on drugs stumbles into a liquor store with a gun and robs. Year after year a judge ascends the bench and robs scores of innocent people of their most precious right–justice. Which is the worst criminal? One goes to the penitentiary for twenty years. The other remains in office for another twenty years continuing his evil mission on decent citizens. One is shunned and despised as a felon. The other is lauded, bowed down to and called, “His Honor.”
We cannot respect even the office of such judges. The office endows them with immunity to commit the worst of crimes, the very destruction of our system. Without honest and competent judges we are left with only an oligarchy of criminals. If the kid who drives the car for the kid who robs the liquor store is caught, he will be charged as an accessory. Those who appoint such judges and use them as their lackeys are accessories to the worst social crime of all–the destruction of the rights of a free people.
I can always work hard to see that the kid gets a fair trial. If asked to defend such a judge I would defer to a lawyer who has a better sense of the duty of a defense attorney than I. I will defend a murderer. But I would find it difficult to defend any judge who destroy the rights of scores of innocent people because he or she has been given the power to do so. Such judges are mass murderers of justice, and justice is often more important than life itself.
I have vented. Thanks for the opportunity.
Gerry
I don’t know how I missed this outstanding yet very disheartening post about tyrannical judges, but I’m glad I found it today. Sadly, I have to agree with you, Mr. Spence, that a majority of judges seem to be far more concerned with keeping their power than administering justice fairly and honorably. Even worse, when a judge unfairly or worse unethically abuses their power, the unfortunate citizen so stripped of his constitutional rights has no real recourse or agency to address such wrongdoing. As a result, I have lost my confidence in both the “justice system” in general, and the so-called “fairness” of judges in particular. I know that not all judges abuse their power, but the fair and honest jurists seem to be among a very small minority. It makes it hard for me as a citizen to be fair and non-critical of judges in return.
Judges love to clear cases off the docket, or claims in a case if Congres has provided for jurisdictional restraints in cases. In just a situation, one is likley to come across a judge who is out right sadistic, or
find out how abuse of power manifests, itself.
Since jurisdiction in federal court is set by Congress in many matters, it often provides murky provisions that can cause hellish situations for a plaitiff.
Industry lobbyists find this as area ripe to short circuit cases to bar cases from proceeding—in Court.
Since jurisdiction can be rasies at any time, even on appeal, this sets up stripping the court of jurisdiction to hear the case, often to ruin some plaintiff–or dare we say his attorney.
These are the things were a diligently attorney can be ruined, and some judges go out of their way to do so, as almost some sport.
I can cite a few examples, where this happened.
It was painful to see it unfold. I agree with the excellent piece by Mr Spence, but the area were jusges can ruin people is in the pitfalls of jurisdiction.
Some have deep scares in this area, and a few firms have actually been ruined from the financial fall outs.
Dear Gerry,
I had an idea about solving the problem of tyrant judges, and I don’t believe it is an unreasonable one. I’ll let you be the “judge” of that, however. 🙂
Here’s my suggestion; each state has some form of disciplinary commission for judges, which not very effective because the judges serving on them, more often than not, cover up for each other and refuse to investigate complaints. So, instead of allowing these ineffeffective commissions to continue, why not replace them with review panels of average citizens who could be trained to review complaints, with one or two experienced defense attorneys to preside over the panel?
From what I have seen, these supposed “self-regulating” commissions have done a lousy job, and have left corrupt judges in power when the corrupt ones should have been quickly removed from their seats.
Average citizens have the power to elect presidents, governors and other public officials at elections, so why couldn’t we (average citizens) be trusted to serve on committees that look into complaints against judges? Until something is done that really WORKS, citizens who have been wrongly convicted will continue to have no recourse at all, and to me, that is not a just or responsible criminal justice system. This may be one solution to fixing a justice system which is badly broken in many areas. I think one possible solution is better than none.